JUDGMENT 1. - Accused appellant Dinesh Kumar Bankat has preferred this criminal appeal against the judgment of conviction and order of sentence dated 10th October, 2000 passed by the Special Judge NDPS Act Cases, Bundi, whereby the learned Special Judge found the accused appellant guilty of having committed offence under Section 8/21 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter to be referred as "the Act") and accordingly, convicted him for the said offence and sentenced him to undergo rigorous imprisonment for 10 years with a fine of Rs. one lac, in default thereof, to undergo rigorous imprisonment for two years. 2. Brief facts, relevant for the purpose of disposal of this appeal are summarised as follows: 3. On 26.7 1996, PW1 Jagmal Verma, Station House Officer, Police Station Kotwali, Bundi submitted a report Ex.P. 7 to the effect that on 26.7.96 at about 7.30 PM the informer informed him that appellant Dinesh Bankat was selling packets containing smack at the rate of Rs. 50/- per packet in Chaumukha market. After recording the information in the Rojnamcha, the SHO along with police party left for Chaumukha market. Having informed the appellant of his legal right, the SHO conducted search and recovered two paper packets from the back pocket of the trouser and also Rs. 150 from the pocket of shirt of the appellant. The recovered packets were found to be to contained with smack weighing 225 mlgms. He then prepared the search and seizure memo, and sealed smack. He arrested the appellant and recorded the statements of witness. 4. After completion of entire formalities as to the investigation, the appellant was charge sheeted. The learned trial court, on the basis of the evidence and material collected during investigation and placed before it, framed charge under Section 8/21 of the Act. The accused denied the charge and claimed trial. 5. The prosecution, in order to prove its case, examined 6 witnesses and also exhibited some documents. The accused appellant was examined under Section 313 Cr.PC. In his explanation, the appellant has stated that Jagmal Verma, C.I. arrested him while he was returning from cinema after the show (9 to 12) was over He also stated that he informed the SHO to get his search conducted in the presence of a Magistrate. In defence, the appellant did not examine any witness. 6. In his explanation, the appellant has stated that Jagmal Verma, C.I. arrested him while he was returning from cinema after the show (9 to 12) was over He also stated that he informed the SHO to get his search conducted in the presence of a Magistrate. In defence, the appellant did not examine any witness. 6. At conclusion of trial, the learned Special Judge found the prosecution case as alleged, proved and accordingly convicted and sentenced the appellant as aforementioned. Hence the present appeal against conviction. 7. I have heard learned counsel for the parties and perused the judgment under appeal and the evidence and material on record. 8. In assailing the conviction, the first argument advanced by the learned counsel for the appellant is that the link evidence in the case to establish that seals on the sample of smack remained intact right through its seizure till the same was deposited with the Forensic Science Laboratory is missing. Learned counsel argued that neither the In-charge, Malkhana, nor the person who deposited the sample in the FSL was examined by the prosecution and as such there is no evidence whatsoever to establish that seals of sample remained intact till it reached the FSL. 9. I have given my anxious consideration to the above argument. It appears from the receipt dated 8.8.96, Ex.P9 that one Ram Chandra. Constable No. 356 deposited one sealed packet concerning case No. 275/96 of Police Station Kotwali, Bundi, along with letter No. 10098 dated 7.8.96 with the F.S.L. However, said Ram Chandra who deposited the sealed packet has not been examined in evidence. Likewise, the In-charge, Malakhana in whose as custody the sample remained till it was handed over to constable Ram Chandra for being deposited with the FSL has also not been examined in evidence. Thus, I do not find any evidence on record to establish that the seals of sample remained intact till it reached the FSL. The argument of the learned counsel that link evidence is missing in this case is worthy of acceptance and it must be considered to be a material infirmity in the prosecution case. In this view of the matter, it must be held that prosecution has not been able to prove that the article recovered from the possession of appellant was smack so as to constitute offence under the Act. In this view of the matter, it must be held that prosecution has not been able to prove that the article recovered from the possession of appellant was smack so as to constitute offence under the Act. Reference i may be made to a decision of this court in Jassa Ram v. State of Rajasthan, 1994 (2) RLR 653 , wherein, the court in some what similar situation held as under: "Besides this, the normal link evidence is also missing in this case. PW3 Virendra Singh, in-charge, Malkhana has not proved the relevant date of entry in the Malkhana Register has not proved the relevant date of entry in the Malkhana Register. PW9 Rajendra Singh, who was allegedly carrying the samples to the F.S.L., has specifically admitted that despite his best efforts, he could not get to the receipt of the FSL about the samples which eh had deposited there. This is no evidence to establish that seals of samples remained intact till it reached the FSL. Therefore, this link evidence is also missing in this case. The learned lower courts have conveniently ignored this material infirmity in this case. In such circumstances, the prosecution has miserably failed to prove that the material recovered from the possession of the petitioner was opium within the meaning of opium Act and, therefore, the learned lower courts have committed an illegality in convicting and sentencing the petitioner." 10. The next point canvassed by the learned counsel appearing for the appellant is that the prosecution has miserably failed to tender in evidence the FSL report. According to the learned counsel, no question about the contents of the FSL report were asked to the appellant while recording his plea under Section 313 CrPC. and as such there is no evidence to prove that the alleged material recovered from the possession of the appellant was smack. Therefore, the trial court has committed serious illegality in convicting the appellant. In support of his argument learned counsel has relied upon a decision of the Apex Court in Jesse Ram v. State of Rajasthan (supra), wherein this court held as under: ".....Thereafter during trial, none of the prosecution witnesses so proved the said report. Again the learned trial Magistrate did not put any question regarding the contents of the FSL report to the petitioner while recording his plea under Section 313 Cr.PC. Again the learned trial Magistrate did not put any question regarding the contents of the FSL report to the petitioner while recording his plea under Section 313 Cr.PC. in such circumstances, the FSL report was neither admitted in evidence nor the contents thereof were put to the petitioner under Section 313 Cr.P.C. still then the lower courts have relied upon the FSL report. Since the petitioner was not confronted with the contents of the FSL report, a great prejudice has been caused to him and this is a serious infirmity, which is fatal to the prosecution case. In such circumstances, the contents of the FSL report cannot be read against the petitioner." 11. In the case at hand, it appears from the record that F.S.L. report was very much available on record with the prosecution even prior to recording the prosecution evidence, but still the prosecution has miserably failed to tender in evidence the F.S.L. report. That apart, the learned trial court did not put any question regarding the contents of the F.S.L. report to the appellant in the course of his examination under Section 313 Cr.PC. As such it can well be said that FSL report was neither admitted in evidence nor its contents were put to the appellant under Section 313 Cr.PC. This, in my considered view is a serious infirmity which is fatal to the prosecution case. so The appellant having not been confronted with the contents of the FSL report, a great prejudice has been cause to him. 12. It also need be observed that 9 documents were tendered in evidence and the trial court exhibited these documents on 5.4.99. But surprisingly enough, though the F31. report was already available on record prior to recording the prosecution evidence, yet it was not tendered in evidence. It appears to me that it was only on 3.10.2000 i.e. just before a week from the date of judgment and after the case was fixed for final arguments, the trial court noticed this mistake and on its own marked the FSL report as A(1), which in my considered opinion cannot be said to be tendering and proving the document in evidence. 13. 13. Lastly, it has been contended by the learned counsel for the appellant that as per the prosecution case, the appellant was apprehended while allegedly involved in selling smack in a market and search of his person was conducted there. Learned counsel argued that undisputedly the place of search was a busy market and therefore it cannot at all be believed that none prepared to witness the search. According to him, there is no evidence to show that PW1 Jagmal Verma had no option but to conduct search in the presence of police personnels. In this back-ground it was argued that in the absence of there being independent witnesses the search conducted by PW1 Jagmal Verma cannot be acted upon and it cannot be said that appellant was in possession of smack. In support of his argument, learned counsel has relied upon two decision of this court of Ram Chandra v. State of Rajasthan, 2002 WLC (Raj.) UC 471 and Nadeem v. State of Rajasthan, 1998 RCC 651 and a judgment of the Apex Court in Gyan Singh and others v. State of U.P., 1995 Supp. (4) SCC 658 . 14. I have bestowed my anxious consideration to the above argument and have gone through the case laws cited at the bar. Before proceeding further, it would be profitable to notice the relevant evidence in this behalf. PW1 Jagmal Verona, who conducted search has deposed that he directed Ram Chandra, A.S.I. to arrange for the independent witnesses, who, on return, informed that none was prepared to become independent witness. PW2 Ram Chandra ASI has deposed that Jagmal Verma . directed him to summon two independent witnesses. He searched for the witnesses but none in Chaumukha market prepared to witness the proceedings. He further deposed that Jagmal Verma had given him a requisition, Ex.P 3 to procure the independent witness. In cross examination, the witness stated that shops in Choumukha Bazar were open and 100-200 persons used to visit. He enquired from every one in Choumukha Bazar, including the shopkeepers and the visitors, but none was prepared to become witness. According to him, he does not remember the name of any shopkeeper. PW4 Tek Chand, Constable has deposed that the place was thickly crowded and 100-50 persons pass through every minute. He enquired from every one in Choumukha Bazar, including the shopkeepers and the visitors, but none was prepared to become witness. According to him, he does not remember the name of any shopkeeper. PW4 Tek Chand, Constable has deposed that the place was thickly crowded and 100-50 persons pass through every minute. PW5 Mangilal, Constable has deposed that Kotwal Sahib informed the appellant that he has information that he (appellant) was in possession of smack and that he may search him or that some gazetted officer may be summoned. 15. From the evidence discussed above, it is evident that the market where the officer empowered under the Act conducted search and seizure of the appellants in terms of Section 50 of the Act, was a busy market where all shops were open and more than 100 persons used to pass through the said busy market and therefore, it cannot be believed that every public witness declined to cooperate without there being any reasonable cause. In the present case there is a vague explanation that the public witnesses or the shop keepers were approached but they declined. Neither the name of such witness has been given nor it is asserted that a mention about the same has I been made in the case diary. It appears that the police personnel's took upon themselves to bear the entire burden or proving the prosecution case. Thus there is no independent corroboration supportive of the official version. The statements of official witnesses, in the facts and circumstances of the case, in s order to be safe to be acted upon would require some independent corroboration which is not forthcoming in the present case. Thus. I deem it unsafe to maintain the conviction of the appellants on the uncorroborated version of the official witnesses. particularly when prosecution has also failed to establish its case on two more counts as discussed hereinabove. The ratio to of the judgments cited before me is that recovery of smack in the absence of independent witnesses coupled with non-compliance of the provisions of Section 50 of the Act results into vitiating trial against the accused. 16. The upshot of the above discussion is that the appeal stands allowed. The conviction of appellant Dinesh Kumar under Section 8/21 of the NDPS Act is set aside and he is acquitted of the charge. 16. The upshot of the above discussion is that the appeal stands allowed. The conviction of appellant Dinesh Kumar under Section 8/21 of the NDPS Act is set aside and he is acquitted of the charge. The appellant is in jail and he be set at a liberty forthwith, if not required in any other case.Appeal Allowed - Conviction Set Aside. *******